Subscribe

Category: Article

The new year in Sri Lanka commenced with some noise around aspects of transitional justice, largely due to the release of the report by the Consultation Task Force (CTF). The report capturing over 7000 views from across Sri Lanka is the first officially sanctioned process that consulted people on their views on the proposed mechanisms on transitional justice and touches on many other critical areas on reconciliation. Despite being an important initiative, only particular aspects of the report have been discussed in the public domain and reported by most media, with no acknowledgement yet to date from either the President or the Prime Minister. The handover ceremony of the report on 3rd January in itself speaks volumes. This event initially planned for late 2016 was rescheduled for early 2017 with an indicator that both the President and the Prime Minister would be present to receive the report. Neither made an appearance at the January event. Instead, the report was handed over to former President Chandrika Bandaranaike Kumaratunga in the presence of government ministers, the Opposition Leader and officials.

The CTF report is one of many reports in recent years that examine key issues relevant to transitional justice in Sri Lanka, and the lack of an official response from the leadership can be attributed to a host of issues from competing processes, prioritization, busy schedules, lack of interest/commitment etc. Yes, the CTF report is bulky (three volumes to be precise) and reading it is a daunting task to most. But a commendable task of the CTF is the production of a shorter volume of just over 100pages with an executive summary and recommendations containing summaries in all three languages. For anyone interested in the different aspects and elements involving reconciliation in Sri Lanka and to understand the views of thousands across Sri Lanka, reading the full report is highly recommended. Apart from the rich narrative, the CTF report is yet again a reminder of the many challenges and complexities and the need for immediate action if peace and reconciliation is to stand a chance in Sri Lanka.

Confronting Challenges In the New Year

Some in government and many in media seem to have merely latched on to the CTF recommendation on a hybrid accountability mechanism with the participation of foreign judges. The uproar on a hybrid mechanism is not new. The consensus resolution at the UN Human Rights Council (UNHRC) in October 2015 was historic in that for the first time the government of Sri Lanka recognized past abuses and agreed to take steps within the four pillars of transitional justice: truth, justice, reparations and non-recurrence. These translated into specific commitments including four mechanisms [a special court and special counsel’s office, a truth commission, an Office on Missing Persons (OMP) and Office for Reparations], law reforms, confidence building measures and others. Soon after the adoption of the resolution, many leaders in government distanced themselves from the commitment on the participation of foreign judges. The CTF’s recommendation merely revives this opposition. Those loudly commenting on this single issue seems to have missed the many other findings and recommendations. The CTF goes into detail on a truth telling mechanism, the OMP, reparations, confidence building measures, psychosocial issues and a host of other areas. Those who take the time to read the report will be confronted by a diverse range of issues and the sheer complexity linked to transitional justice in Sri Lanka.

Transitional justice is not new to Sri Lanka. Nor is the issue of internationals participating in domestic processes. The previous government of Mahinda Rajapaksa appointed several state initiatives to learn lessons and investigate past abuses including missing persons. The Udalagama Commission, the Lessons Learnt and Reconciliation Commission (LLRC) and the Paranagama Commission are some of the more well known initiatives, two of which had international involvement. The Advisory Council to the Paranagama Commission, appointed by former President Rajapaksa in 2014 was provided an extension by the Sirisena government. While there are differences between the past examples and what is proposed, it is advisable for those commenting to take a moment to learn of the past exercises and why internationals are necessary for specific tasks if impunity is to be addressed in Sri Lanka.

The transitional justice process in Sri Lanka has been beset with challenges since its inception. There is no coherent strategy to address transitional justice, despite highlighted by several including by the High Commissioner for Human Rights in June 2016 in his oral update to the UNHRC. Similarly, the government has failed to sufficiently communicate and explain what they committed to in 2015 and what is presently in motion. Government’s failure to introduce a comprehensive outreach program around the OMP legislation in August 2016 resulted in many in civil society having to step in and explain what the proposed legislation was meant to achieve. Apart from the many technical issues, a fundamental issue confronting transitional justice is the absence of political commitment and leadership. The inability to proceed with many of the commitments made in 2015 demonstrates not merely a lack of capacity or outreach. It is much more. Political leadership has been and continues to be absent in terms of the transitional justice process. Many have commented on the absence of the President and Prime Minister at the January 3rd event, but this absence and the inability to give political leadership to an area critical to reconciliation in Sri Lanka is not new. These challenges, and many others, continue to confront the government and if not addressed urgently, may cost Sri Lanka’s unique opportunity to deal with the past.

What Next in 2017?

Despite the noise in the first few days of 2017, the prognosis for transitional justice in Sri Lanka is bleak. Since 2015, very limited demonstrable progress has been made. Delays and inefficiencies have resulted in frustration and suspicion among many. Those more hopeful are weary the full implementation of commitments made in 2015 is unlikely in the near future. But the CTF report and several others are a reminder why we as Sri Lankans must not let this moment pass.

March 2017 will see a reporting back to the 34th Session of the UNHRC on progress made with the 2015 commitments. It is likely that the weeks leading to the session will see some developments around the commitments. The negotiations around GSP+ will also likely keep the pressure on some areas under consideration. While progress is needed, concerns remain with substance and process. If the OMP process is an indicator, civil society and others must keep the pressure on the need for a transparent and inclusive process as well as ensure proposed legislation and mechanisms address the grievances of victims. Questions will also need to be asked on sequencing, ensuring that the government does not stop at truth and reparations but accountability is kept on the table and that there is no weakening of the commitments made in 2015.

The likely scenario of movement with certain commitments in the first few months of this year should not be taken as a guarantee that the momentum stays beyond March 2017. With limited progress with the commitments so far, it is critical that the UNHRC continues its engagement with Sri Lanka and a comprehensive resolution calls for continued monitoring on the situation and reporting back at a later date. The limited movement so far and the many challenges confronting Sri Lanka is an indicator that continued support is needed beyond March 2017.

Finally, there must be attention beyond the immediate and the symbolic to more long-term reforms targeting broader structural issues. The government organized 8-14th January as the ‘National Integration and Reconciliation Week’ but such a symbolic gesture must be followed by real action. Action should also not be seen as an exercise at checking boxes or done at the behest of the international community or other actors. 2017 so far has seen some aspects of transitional justice in the news but one hopes that the rest of the year sees movement beyond the rhetoric and empty promises. 2017 should be the year that the government and its leaders considers the views of thousands of Sri Lankans and design a transitional justice process grounded on a comprehensive strategy. This is essential if Sri Lanka is to reckon with its past.

10th December marks international human rights day. While we should respect, promote and protect human rights regardless of a special day, 10th December ideally should be when we revisit and reflect on our human rights obligations, their relevance and how best to fully realize them. On this day in 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR), providing a common standard and facilitating members of the international community to develop binding human rights guarantees and obligations. While we mark human rights day in Sri Lanka, it is fitting to revisit the UDHR and what it stands for in the present day. The preamble refers to ‘the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. The UDHR states that ‘…human rights should be protected by the rule of law’ and reaffirms the UN Charter with the ‘faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom’. Important points to consider in the midst of the reforms underway and what we as Sri Lankans should aspire to.

An ambitious reform agenda is in the cards. Nearly two years into the Sirisena government, it is an opportunity to reflect on the past and consider prospects for the future. Successive governments in Sri Lanka are accused of subverting international and national obligations. Serious human rights violations and violations of international humanitarian law were evident from all parties in the near three decades war and post war period. This was a dark chapter in Sri Lanka and a reminder to all of us as to why reforms are so critical for non-recurrence. We are presently in the cusp of drafting a new constitution. Commitments have also been made in the consensus resolution adopted in October 2015 at the United Nations Human Rights Council (UNHRC). A transitional justice process is underway, with the likelihood of the establishment of the first permanent office to investigate enforced disappearances and missing persons. Several other mechanisms and legal and policy reforms are promised. In March 2017 Sri Lanka will be discussed by the UNHRC, when the progress of the 2015 resolution will be reviewed. Later in the year, Sri Lanka’s third Universal Periodic Review (UPR) will take place. These and many other processes provides Sri Lankans an opportunity to revisit, reflect and reckon with the past and identify ways forward to protect rights and take action to end impunity.

The last decade, despite its violence and darkness, also witnessed the creation of Groundviews. My colleague Sanjana commenced an important journey in 2006 and since then Groundviews has gone from strength to strength. While we celebrate a decade of great achievements by Groundviews, it is also a reflection on what is before us. We have been promised a range of reforms, from constitutional reforms to transitional justice to economic reforms. This article briefly examines the importance of one area of promised reforms- Transitional Justice- and why it is a critical aspect if reconciliation is to be fully realized in Sri Lanka.

Human Rights & Transitional Justice

Since the political transition in 2015, some successes in terms of human rights have been made. This includes the ratification of the International Convention for the Protection of All Persons from Enforced Disappearance, the introduction of the 19th Amendment to the Constitution that provides for the Right to Information and independent institutions such as the National Human Rights Commission, release of lands in some areas in the North and East and the ability of some people to return home, among others. Despite some progress, the list of areas needing attention is long. Whether the reforms will be delivered and there is demonstrable structural and tangible changes is to be seen.

Transitional justice is a process that provides for social transformation, exercises justice, addresses impunity and offers remedies in the wake of massive violence. It is a process looking at the past and moving forward, examining what has happened in the past, taking action and ensuring non recurrence. Much has been said about transitional justice in Sri Lanka and its impact. One aspect that may not always receive attention is the linkages of transitional justice with the rights discourse. In creating the mandate of the UN Special Rapporteur on the promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, the UNHRC provides that transitional justice as a strategy is aimed at guaranteeing respect for and protection of human rights in the aftermath of widespread or serious violations. Transitional justice thus provides for the right to truth, right to justice and the right to reparations. It recognizes the critical role of victims and ensures a victim centered approach. This then entails providing answers, access to justice and ending impunity, providing remedies and rebuilding trust. It is also the enforcement of human rights standards such as the due process of law and ultimately the strengthening of the rule of law. All of the above are fundamental to a society that experienced massive abuses in the past and Sri Lanka is no exception. Despite attempts to create misconceptions on what transitional justice is meant for Sri Lanka by some sections of society, one cannot deny the need for a transitional justice process that addresses the grievances and past abuses in Sri Lanka and ensures steps are taken on non-recurrence.

The 2015 resolution contains Sri Lanka’s commitments on transitional justice. They include the establishment of a hybrid court with a special counsel’s office, a truth and reconciliation commission, an Office for Missing Persons (OMP), an Office for Reparations, security sector reforms, land releases, independent investigations and legal reforms, among many others. Since the adoption of the resolution, the legislation on the OMP was enacted speedily in Parliament but despite a few months since its passage, no office is yet established. Officials have publicly stated that it is unlikely any other legislation on transitional justice is to be introduced in 2016, resulting in delays with the establishment of the remaining mechanisms committed in the 2015 resolution. Understandably, constitutional reforms have received much attention and likely to consume the legislature in the coming months. While the prioritization is inevitable, what is disappointing is the absence of genuine commitment by the political leadership, the lack of a strategy on transitional justice and the gaps with communication. More than a year after the adoption of the 2015 resolution, the mixed messages from different actors in government on the implementation of its own commitments, namely the role of the international judges, is an indicator of the lack of coherence among key actors. Moreover, the absence of champions to take the transitional justice process forward is telling. Unlike other processes such as constitutional and economic reforms, transitional justice has evidenced a rather step motherly approach. The lack of a clear strategy has resulted in a siloed approach. Numerous advisers, consultants, committees and working groups have been appointed to advice, design and draft but a question is whether they are privy to all aspects of transitional justice or merely the bits shared with them. For example, are those involved in drafting legislation for a future TRC, court and an entity on reparations aware of what is proposed within the security sector reforms? And most recently, the proposed counter terrorism legislation and amendment to the Criminal Procedure Code are indicators of the tensions within government and the lack of cohesion and coherence. The few developments so far in the transitional justice realm are telling in terms of the inability and possible unwillingness among key actors in government to understand and fully grasp the complexities involved.

The challenges are many. Any post war context is likely to face numerous setbacks. There are likely to be more developments, surprises and challenges in the coming months. That said, there is a window for reforms and it is paramount that citizens who want to see real change keep the pressure. Countries that experienced similar situations such as Argentina, Chile, Guatemala and Sierra Leone went through years of uncertainties and delays but persistence and patience ensured reforms that ultimately addressed the culture of impunity. Sri Lanka has commenced that journey and it is critical to see it through.

Seizing opportunities in 2017

The next few months is likely to see some activity in terms of progress with the commitments made in 2015. The March session at the UNHRC will see the reporting back by the High Commissioner for Human Rights and a review on progress made in Sri Lanka. Victims and civil society in Sri Lanka have called for a follow up resolution where Sri Lanka remain on the agenda of the UNHRC, a necessary step to support the government in fulfilling its commitments. The lack of demonstrable progress in many areas makes a case why Sri Lanka and Sri Lankans require continued support to carry through with reforms. The March session and the subsequent UPR process both provide opportunities for Sri Lanka to receive the support it requires in realizing much needed reforms.

The constitutional reform process is also likely to eclipse other reform processes. It is paramount that Sri Lankans utilize these months to push for reforms that provide for a political solution and a rights framework that addresses the grievances of Sri Lankans. While attention has been largely focused on the inclusion of socio economic rights in a future Bill of Rights, many Sri Lankans have failed to realize the importance of including safeguards to address violence and deal with the past in the Constitution. This includes providing for the right to truth, justice, reparations and non-recurrence. Constitutions in Tunisia, Kenya and Mexico recognize the importance of incorporating substantive transitional justice provisions into their respective rights framework. Recognizing Sri Lanka’s own past and commitments towards reform, recommendations have been made to incorporate specific rights into the Constitution to provide for truth, justice, reparations and non-recurrence. With the constitutional reform process underway, it is paramount and timely to revisit these issues, taking this opportunity to recognize and reckon with the past and introduce guarantees for non-recurrence.

The transition in Sri Lanka is due to many factors, with victims and civil society playing a critical role. Their calls for justice were loud and clear over the last few decades, a persistent reminder of what is at stake and why we cannot slide towards impunity. The last year has witnessed several challenges including frustrations and divisions among colleagues who stood together during some difficult years. The delays in implementation, lack of transparency and inclusivity in the design of mechanisms have all contributed to these sentiments. With 2017 likely to witness some movement on transitional justice, those who have been active in the past must keep the pressure in the implementation of commitments. In this, victims and civil society must continue to play a prominent role in the future, persevering with reforms, and the right to truth, justice and reparations and guarantees of non-recurrence.

The opportunity is now to break from the past. Much rides on the political leadership and it is to be seen whether the promises made are fulfilled or merely added to the long list of empty promises of successive governments. Will 2017 be the year we see a shift that commences a process for the full realization of human rights of all citizens? Will it be the year we witness a break from the past and where reforms are delivered? Civil society and others who played a critical role in bringing the change must stand tall and keep pushing the reform agenda. And all Sri Lankans must seize the opportunity to hold the political leadership to the commitments made and realize a new Sri Lanka.

11 August 2016 was an important day for the victims of past abuses in Sri Lanka. This was when Sri Lanka’s Parliament enacted legislation to establish the first permanent entity to investigate and inquire in enforced and involuntary disappearances and missing persons. For the victims, many who have gone before numerous investigations with no follow up, the Office on Missing Persons (OMP) may finally be able to provide them answers and end the silence.

While 11 August was significant for the victims, the events in Parliament demonstrate the immense challenges faced by Sri Lankans in terms of reckoning with the past. Although the OMP bill was gazetted by Parliament in May 2016 and ample time was provided to challenge and move amendments, a few MPs acted in the most despicable manner to disrupt parliamentary proceedings and essentially attempted to scuttle any hope of thousands finding the truth. The antics of a few MPs robbed many others of a debate to discuss a critical issue relevant to reconciliation and for Sri Lankans to attempt to confront the past. Although that opportunity was missed, the government ensured that the bill was not held hostage to the antics of a few. With the support of all the key parties including the TNA and JVP, the legislation was passed in Parliament, thus enabling the OMP to be established.

Although we now have legislation establishing a permanent body to investigate into disappearances and the missing, no official figures are available on the exact numbers of disappeared and missing in Sri Lanka. The recently concluded Paranagama Commission received over 25,000 complaints of missing persons. Over the years multiple commissions have received thousands more complaints. This demonstrates the thousands across Sri Lanka continuing to search for answers. In many instances family members go from one investigation to another, clinging to the hope of finding their loved ones or at the very least, getting answers. The search, despite the many difficulties and challenges, is a basic ask: what happened to my loved one?

What is the OMP?

The OMP is an independent office with seven members appointed by the President on the recommendation of the Constitutional Council. The members of the OMP are meant to be independent individuals with expertise on human rights, international humanitarian law, humanitarian issues, fact finding among other areas. There is also a fixed term of three years and limitation of two terms per member. The office will be headquartered in Colombo with the option of having field offices. Many victims have been vocal that the OMP must have field presence which will facilitate access for them to engage with it.

The OMP has the mandate to trace, search and investigate into complaints brought before them on cases of both the missing and disappearances. Thus, a crucial and basic point that must be raised at the outset is that the OMP is a truth seeking body, a permanent entity that victims can engage with in the search for answers. Due to its permanent nature, there is no fear of whether the mandate will be renewed or not, as faced by many commissions. This provides for the OMP to conduct investigations thoroughly and not be rushed by any deadlines. The legislation provides for a tracing unit but specifies that the OMP also has the discretion to establish other units or divisions, ensuring that the office is able to obtain the necessary expertise and technical assistance required to investigate into cases, some spanning decades.

A missing person is broadly categorised in the legislation as those affected by the conflict in the North and East of Sri Lanka, its aftermath or a person classified as “missing in action”, or affected by political unrest or civil disturbances or as a case of enforced disappearance as defined in the International Convention for the Protection of All Persons from Enforced Disappearances. The broad categorisation ensures that both cases of enforced disappearances and missing persons are included but the downside of this is the fear of overwhelming the OMP with a large number of complaints. Furthermore, despite the mandate to examine both enforced disappearances and missing, a concern raised by some victims is the absence of a reference to enforced disappearances in the OMP’s title. This hopefully can be clarified in the advocacy around the OMP, ensuring that all victims understand the broad scope.

The mandate of the OMP very specifically provides for specific powers to investigate and these powers are clearly articulated in the legislation. Some critics have deliberately distorted facts by claiming that the OMP is a Trojan horse and will open the door to accountability of the war heroes. The question to those critics is how such a task is possible when the OMP mandate has no specific mention of prosecutions or trials but only provides for investigations that can eventually give answers to victims. For those who maybe unaware, the right to truth is a basic fundamental right of victims and one championed by successive Sri Lankan governments. One assumes the rationale to appoint numerous past commissions was meant to unearth answers, although many who went before such commissions are still waiting for answers.

Other critics refer to the exclusion of the Evidence Ordinance in the investigations of the OMP, with a possible situation where false evidence is collected for prosecutions. The point above stands: the OMP is merely a fact-finding body with a mandate to search for answers with no prosecution powers. The Evidence Ordinance is only applicable for those pursuing criminal justice. Similar provisions can be found in the Human Rights Commission Act.

There are also some commentators who make factually erroneous statements with regards to the inapplicability of the newly enacted Right to Information Act to the OMP. This is false. The Right to Information Act will apply to the OMP except for a limited instance where information is given in confidence. One should read Section 15(1) of the OMP Act which provides that “members, officers, servants and consultants of the OMP shall preserve and aid to preserving confidentiality with regard to matters communicated to them in confidence. The provisions of the Right to Information Act shall not apply with regard to such information”. This should then be compared to the Nineteenth Amendment to the Constitution, enacted by Parliament in 2015. Article 14A contained in the Amendment introduced the right to information provision with specific restrictions in the application including “such restrictions prescribed by law as are necessary in a democratic society….for preventing the disclosure of information communicated in confidence….”. Similarly, restrictions on accessing information provided by a third party to a public authority in confidence is protected in the Right to Information Act 2016 within Sections 5(1)(f),(g),(h)and (i).

If Article 14A to the Constitution and the Right to Information Act are read in full, one will be able to ascertain that only a few restrictions are placed, with good reason, on accessing information. Everything else is open to the ambit of the Right to Information Act. Thus, it is clear that the OMP is not precluded by the Right to Information Act. On the contrary, it will need to provide information unless in specific instances as provided by law. It is indeed unfortunate that commentators and critics passing judgement on this issue fails either to fully comprehend relevant constitutional provisions and legislation or deliberately attempts mischief by spreading false information, or possibly both.

Apart from the legal safeguards, there is also the practical issue of requiring a degree of confidence in the information given by a victim and/or witness. Past experiences highlight situations where victims and witnesses were threatened, harassed among other things, for engaging with official investigations. The Paranagama Commission was the most recent commission where individuals faced security threats and surveillance. Any independent investigation genuine in its mandate to search for the truth will need to ensure that information provided in confidence is secure and that identities are protected. The absence of such a safeguard will not generate trust with the OMP and may lead to possible protection concerns.

How is the OMP different to past initiatives?

Sri Lanka has had a long list of state driven investigations including numerous commission of inquiry. Several have solely been on enforced disappearances and/or missing persons. Thousands of victims have gone before these numerous initiatives, recounting past events and abuses. Many have done this multiple times, going from one investigation to another, repeating experiences to multiple persons and entities. Several times I witnessed families going before recent commissions such as the Lessons Learnt and Reconciliation Commission (LLRC) and the Paranagama Commission, to speak about their disappeared and missing loved ones and plead for answers. In many instances their dignity was robbed. For most, their questions remained unanswered. Such experiences involved complex emotions of hope, frustration, anger, fatigue, anticipation, disappointment and much more. For many, state initiatives by successive governments have failed and there is no trust another commission will make a difference.

All of the above begs the question why the OMP will be different to past initiatives?

Firstly, it is not an investigation with a limited time span but a permanent body that is meant to have the necessary resources and expertise to investigate cases of disappearances and missing

It is established by an Act of Parliament with specific powers to investigate and is an improvement on the structurally flawed commissions appointed previously.

The OMP has no restrictions in terms of time period or geographic area and can look at all cases of disappearances and missing

Anyone can go before the OMP to give information or make a complaint

OMP can share information with victims, without waiting for others to take action

OMP can work with other government entities to ensure victims are provided reparations and steps are taken to prevent recurrence of violence

The OMP’s protection powers can ensure security issues are addressed and victims do not face reprisals for engaging with the OMP. Similarly, information provided in confidence to the OMP will be protected and witnesses do not need to fear reprisals for sharing such information.

These are welcome measures as it provides the OMP with resources, expertise and independence to work in a credible manner without the fear of interference and ensuring a victim centered approach is taken. It is now critical that the Government and others raise awareness of what the OMP is, provide it with required resources and expertise and ensure the victims are able to trust it as a credible mechanism to investigate and provide them with answers.

Why is the OMP important now?

Successive government have attempted and failed to provide answers to a significant number of people from across Sri Lanka on the whereabouts of their missing loved ones. Investigations, inquiries, committees and commissions over the years have all failed in this basic task of finding answers. Despite the lack of confidence with such initiatives, thousands continue to engage with the hope that the next initiative may provide answers. Failures with past initiatives and structural flaws are the very reasons for a new entity with the necessary powers to investigate and find answers.

Sri Lankans have been promised ambitious reforms. A new constitution is in the offing as well as reforms addressing reconciliation and development. The reforms hold the promise of a new Sri Lanka, an exciting time for many Sri Lankans. Despite this, a significant number across Sri Lanka do not know what happened to their loved ones. For these families, the promise of a new constitution and infrastructure are hollow. For them, the fundamental right to know, a right many of us take for granted, is still an illusion.

The OMP provides a chance to correct these wrongs. This is the time to go beyond the rhetoric and to establish a mechanism that can finally, after years of failed attempts, provide answers to the thousands still searching for their loved ones. It is also finally an opportunity to say Nunca Mas (Never Again).

Despite the commitments and statements on transitional justice in Sri Lanka, there continues to be a limited understanding among the different stakeholders as to what transitional justice and associated concepts mean. This is compounded by the challenge of selecting the appropriate words and terms in Sinhala and Tamil languages which are best suited to and easily understood in the local context. With the evolving discussions and debates on the subject, language could well be the catalyst for the acceptance of transitional justice among Sri Lankans, across Sri Lanka.

The latest initiative by the Centre for Policy Alternatives (CPA) is a glossary of terms on transitional justice which will assist in raising awareness and dispel myths and misunderstandings of what is meant by certain words and terms. CPA’s own work in the area of transitional justice proved the gaps in understanding the meaning of words and terms and it is hoped the present glossary can assist in greater awareness of transitional justice and its relevance in Sri Lanka.

An interview with Howard Varney a few weeks ago held in Colombo attempted to demystify transitional justice and map out the challenges around reconciliation in Sri Lanka. As noted on the website of the International Centre for Transitional Justice,

Howard Varney is a senior program adviser with ICTJ. His areas of expertise include truth-seeking, national prosecutions, institutional reform, reparations, and public interest litigation. Howard is a practicing advocate at the Johannesburg Bar. His legal practice includes human rights, constitutional, and administrative law.

In the early 1990s he was an attorney with the Legal Resources Centre in Durban where he represented victims of political violence in public interest litigation, judicial inquests, and commissions of inquiry. In the mid-1990s he led an independent criminal investigation in South Africa into organized political crime which resulted in significant criminal trials. He worked with the South African Truth and Reconciliation Commission as a consultant on range of matters. Howard was the chief investigator for the Sierra Leone Truth and Reconciliation Commission.

We start off by talking about how Varney sees the prospect for meaningful reconciliation in Sri Lanka at present, given that he has visited the country of several occasions in the past including during the Rajapaksa regime.

Varney is then asked as to why we should bother so much with looking at the past, when there is always the option to leave the past behind, as best forgotten, and move forward into the future. Varney’s response leads to a follow up question around what the best time should be for processes on acknowledging the past to be introduced and take root in society. He also responds to the submission that it may be too soon, and too fast, in Sri Lanka to talk about transitional justice mechanisms.

Given the twin imperatives of transitional justice and constitution building for a first term coalition government, Varney responds next to a question around sequencing, and whether constitution building can take place without accountability, or if both agendas can somehow be juggled as equally important for the country to move forward.

He then talks about South Africa itself and the lessons learnt from his own country’s transitional justice mechanisms, given that Sri Lanka does not today, has never in the past and will never in the future mirror the principled political culture and progressive social dynamics that led to the end of apartheid. Varney openly discusses some of the failures in and of South Africa to deal with the past.

He then tackles the role of media and public consultations in a process of constitution building as well as transitional justice.

Finally, he tackles the pushback that the transitional justice agenda often faces – that it is largely alien to Sri Lanka and done or pursued at the behest of Western interests and powers.

Land is a key issue for reconciliation in Sri Lanka. Reparations including the restitution of land, if implemented in the correct manner, can contribute to long-term peace building efforts and prevent further marginalisation of people who were affected by the war. With promises by the government of Sri Lanka (GOSL) to initiate reforms including with transitional justice processes and mechanisms, the Centre for Policy Alternatives (CPA) examines a key issue that is crucial for reparations and reconciliation in Sri Lanka: occupation of land in the Northern Province. While recognising a comprehensive study of this issue in Sri Lanka is needed, the present study examines the situation of land occupation in the Northern Province and comments on steps required if the GOSL is genuine in its commitments. CPA hopes that this initial study limited to the North, can be expanded to other parts of Sri Lanka, data gathered from such an exercise potentially feeding into reform processes and informing policy options.

Memorialisation is an important tool in addressing conflict situations where years of repression, social inequality and injustice have created polarised communities. Memory initiatives can be a great healer and an enabler of reconciliation, paving ways and opportunities for dialogue, understanding, apologising, acknowledging and addressing past violence between divided societies. The change in the political environment in 2015 brought with it a space for such reconciliatory action, and in this respect, the government made promises to establish mechanisms to deal with the past- specifically the 30-year ethnic conflict that ended in 2009.

Memorialisation can play a critical role in the government’s transitional justice agenda, specifically in terms of complementary measures that can help reinforce these systems that may take many months to set up. Further, memory initiatives can address grievances that are not captured fully by the structures promised by the government, while bringing together communities who have suffered similar issues such as disappearances, which were common not only during the 30-year conflict, but also during the two Southern insurrections.

In light of successive governments’ failures to adopt a balanced approach to memorialisation, and given the crucial role the State can play in either healing or dividing communities further, through national memorialisation initiatives it takes up during their tenure in government, this latest discussion paper by the Centre for Policy Alternatives (CPA) hopes to set out guidelines and best practices governments should adopt in their practice of memorialisation. It also highlights the need to adopt, by way of a National Policy on Memorialisation, a consistent and impartial approach to State practice of memorialisation.

This discussion paper is one in a series of policy papers related to transitional justice that the CPA hopes will facilitate discussion around incorporating international best practices in the government’s approach to dealing with the past.

The 2015 political transition in Sri Lanka witnessed several promises for reform. One area in the reform agenda includes the processes and mechanisms for transitional justice.

The resolution titled ‘Promoting Reconciliation, Accountability and Human Rights in Sri Lanka’ adopted at the United Nations Human Rights Council in 2015 provides with it a broad framework for consideration. One area of consideration and debate is on the design of mechanisms including the participation of internationals in domestic mechanisms.

The latest paper by the Centre for Policy Alternatives (CPA) examines this issue through three dimensions: the legal, political and practical and makes the case why it is possible and necessary to have robust international involvement in truth and justice mechanisms. The paper examines the main legal arguments invoking constitutional provisions to oppose the inclusion of foreign judges and lawyers in a judicial process and concludes that there is presently no constitutional bar for such inclusion. It further examines past initiatives, which had some international involvement and highlights the reasons for their failure. It argues that a new framework that goes beyond the past practices must be introduced, with internationals working in partnership with locals to investigate and prosecute international crimes and develop the expertise within Sri Lanka.

With the end of the war in 2009, the need to address the widespread death, destruction, and displacement was overwhelming. Allegations against all sides of potential war crimes and crimes against humanity demands an independent investigation and the prosecution within a credible court of law of those responsible for international crimes committed during the final stages of the war and during its aftermath. The Centre for Policy Alternatives (CPA) has consistently called for such independent investigations and other accountability measures to address truth, justice, reparations and non-recurrence of violence in Sri Lanka. This appeal continues six years after the end of the war. In this report, CPA sets out a range of processes and mechanisms available to the Sri Lankan government to ensure accountability for serious human rights violations and alleged crimes committed during the war. While many stakeholders are identified in the report, the ultimate responsibility for truth and justice in Sri Lanka lies with its citizens; accordingly they must play the central role in the design and implementation of future processes and mechanisms. CPA hopes that the options provided in this report enrich the discussions and debates about the design and implementation of a credible domestic process with the long term goal of achieving truth and justice in Sri Lanka.

For any post war society grappling with the consequences of past violence and engaged in exploring modalities for transitional justice, reparations is an important tool. Reparations, if designed and implemented in an inclusive manner that factors in the grievances of the victims and affected communities, can be an effective tool in acknowledging and addressing the injustices of the past. It is a bridge between the past and the future, and an integral element in the transition towards reconciliation.

The numerous transitional justice initiatives in Sri Lanka, in the past, have at different times explored the issue of reparations, many in ad-hoc forms with no comprehensive policy yet to be introduced that meets basic international standards. Past commissions of inquiry (COIs) including the All Island Commission of Inquiry into Involuntary Removal and Disappearance of Certain Persons of 1998 (Disappearances COI) and the more recent Lessons Learnt Reconciliation Commission (LLRC) recognized the need for reparations and made some useful recommendations including legal and policy reform and assistance to victims. There have also been government circulars and programs to award compensation and issue death certificates including the work of the Rehabilitation of Persons, Properties and Industries Authority (REPPIA). This paper discusses some of these initiatives, some which continue to be relevant and necessary today, and provides recommendations that should be examined and implemented without further delay.

The Centre for Policy Alternatives (CPA) reiterates its advocacy over the years for truth, justice, reparations and institutional reform. In the post war context, CPA has done considerable work in documenting trends and patterns of ongoing violations and advocated reform including legal and policy reform. CPA has also called for action in terms of the four arms of transitional justice and has initiated dialogues among the different stakeholders on the areas that require reform. In this regard, CPA will produce several policy documents to feed into the design and implementation of processes and mechanisms of transitional justice, which will generate a wider discussion on transitional justice and related issues. This is an initial paper on reparations, which will be followed by several other initiatives.